Q&A

Szczygiel discusses Medicare policy revision

Law School Professor Anthony Szczygiel is working with
UB’s new Institute for Person Centered Care to help elderly
and nursing home patients benefit from a revision in Medicare
policy that should enable them to obtain better care in skilled
care facilities and at home through home health care agencies.

Szczygiel, director of the law school’s William and Mary
Foster Elder Law Clinic, says the revised Medicare rule clarifies a
misunderstanding about coverage that has complicated the lives of
patients for years, affecting both nursing home residents and
individuals who sought home health care services.

By CHARLES ANZALONE

Published
April 25, 2013

Can you please explain the specifics of the policy change?

AS: Medicare has agreed to provide Medicare-eligibles
with better access to nursing home services, home health care and
outpatient therapy. The problem was a shadowy “improvement
standard.” In many cases, providers and/or insurers denied or
terminated a Medicare participant’s skilled services on the
grounds that their condition was stable, chronic, not improving, or
that the necessary services were for “maintenance
only.” The legal basis for these denials was nonexistent;
however the results were very real: The participant would not
receive skilled services that are beneficial to them, and with the
denial or termination of skilled services, Medicare would not help
to cover the cost of nursing home care, the needed home health care
or outpatient therapy.

Insurers and long-term care providers have been denying needed
therapy and nursing services to Medicare participants, even though
the services would benefit those individuals. The insurers and
providers believed, incorrectly, that to have Medicare cover these
claims the individual would have to improve in a short period of
time.

Medicare denies they ever had such a policy restriction, but to
settle a national class-action lawsuit, they agreed to revise their
policy statements.

What was the implication of the previous, vague regulations? Who was especially hurt by these unclear conditions of coverage?

AS: The “improvement standard” has had a
particularly devastating effect on patients with chronic
conditions, such as multiple sclerosis, Alzheimer's disease, ALS,
Parkinson’s disease and paralysis. Here is an example: A
husband has MS, a condition that limits his ability to care for
himself, and the disease is slowly advancing. His wife works full
time but has been trying to provide all his care so he can live at
home with her.

Last year the home health care agency refused to help, saying
that while therapy would help him and slow his decline in physical
abilities, he would not get better. Under the revised standard,
since the therapist’s service would help him, the home care
agency could develop a plan of care and send the therapist to the
home to carry that out. Not only would the patient benefit from the
therapy, but since he would be getting a “skilled
service,” Medicare also could cover the cost of home health
aides who would help take care of his personal care needs a few
hours a day. His wife could continue to work and he could continue
to live at home.

Here is a true-life success story that shows the power of the
new rules. A 92-year-old woman fell and broke her hip. After
surgery, she went to a nursing home for rehab. Despite the traumas
of the fall, a major broken bone, the hospital stay and surgery,
the therapist expected this woman to respond almost immediately to
therapy.

After three weeks, the therapist said he had to stop the
treatment because the woman had “plateaued” in her
progress. She was not able to walk at that point. The
woman’s daughter, a good advocate, had heard about this new
standard, and brought it and the settlement agreement to the
attention of nursing home personnel. It took some effort and
persuasion, but eventually they agreed to continue the therapy
since they realized this “maintenance program” is
covered by Medicare. Two weeks later, this woman is
mobile—walking down the hallways using a walker.

Not every case will show improvement like this, but at least
folks will be given the chance. At a minimum, the new rules will
help these individuals keep more abilities than if the therapist
gives up on helping them.

How does the new definition of “skilled care” affect medical personnel?

AS: Medical personnel can now provide the care needed by
these individuals and give them helpful therapy or nursing
services, even if the individual’s condition will not
improve. They no longer need to fear that such efforts will be
punished after the fact, with Medicare pulling back payments or
even adding penalties.

Do you think this will increase the overall cost of the Medicare program?

AS: I think we can anticipate some increase in Medicare
coverage—and thus payments for these needed services—in
the short term. However, research suggests that these services can
save money in the longer term as individuals can avoid some of the
current problems of re-hospitalization or extended stays in a
nursing home.